The 2012 Summer Series is a collection of essays, articles and op-eds published by the Canadian Civil Liberties Association. The Summer Series explores some key questions about rights and responsibilities in democracy and examines topical issues through a civil liberties lens.
To view all articles of the Summer Series, click here.
When a local British bakery arranged its bagel display as the Five Rings Symbol, it was ordered to remove it. The ” Olympic” Café also changed its name to the “Lympic” Café after its owner was threatened with a law suit. This is what zealous protection of a trademark looks like: wanting to limit the use of the Olympic brand for fear that it will lose its value, the IOC cracks down on unauthorized Olympic expression. It worries that the valuable sponsors will no longer be willing to pay to be rightfully associated with the Olympic brand, if the brand is too widely used.
The protection of commercial trademarks can take place at the expense of freedom of expression. To criticize, to make a parody, to celebrate or denigrate the Olympics, one may want to use its symbols. Corporations who own trademarks may welcome the free publicity that they get when people use their slogans , logos or names, as in ” You look straight out of Mad Men” or “Just Do it”. However, many resent having their precious image and brand used to criticize them or associated with campaigns that they do not approve. In that case, they may send a threatening letter demanding that the website owner, painter, or filmmaker cease and desist, and stop using a particular brand, logo, name, colour, or groups of colour. How far can that go?
As a defender of free expression, the Canadian Civil Liberties Association, is always concerned when manners of speaking, of writing, of painting or of creating are curtailed. We are particularly concerned when it is done in the name of the law. Many people are intimidated by the threats, veiled or more evident, of a letter from a lawyer, and will quickly comply to avoid any law suits, just as the Olympic Café became the Lympic Café in order not to offend the powerful Olympic Committee. At times, people may obey even if there is no reason to do so, because they fear the expense of defending themselves. If something like that has happened to you, if you have received a letter, notice, order to desist from using a particular logo, colour, name in your political or artistic work, call us.
CCLA is interested in monitoring the use of Strategic Lawsuits Against Public Participation (SLAPPs) and protect free expression, particularly in relationship with trademarks.
What is a SLAPP?
Strategic lawsuits against public participation (SLAPP) are lawsuits targeted against individuals or groups who have spoken out or taken a particular position on a matter of public interest. The effect of SLAPPs is to silence voices through intimidation and the threat of expensive litigation. Resources are redirected to dealing with the legal matter and away from the original public criticism. The CCLA is concerned about this potential misuse of the civil justice system by powerful litigants to quash meaningful counter-perspectives and dissent on issues of public importance. We are also concerned about the chilling effect SLAPPs can have on other potential participants in public debate.
What is a trademark?
A trademark is a mark that is used as a way to indicate the source of commercial wares or services. It serves to distinguish those wares and services of one maker from those of others. So, for example, a consumer who encounters a running shoe with a swoosh on it, will know that it was produced by the Nike Corporation. In recent years, with the rise in “branding,” trademarks have come to express complex and shifting messages about identity. This is one of the reasons that trademarks have come to be culturally significant for commercial and critical purposes, with individuals and organizations seeking to engage them in their expressions.
The boundaries of trademark infringement remain unclear, as there is a push for the expansion of trademark rights alongside a pushback from those who recognize the important role trademarks play in other areas of cultural expression.
Nathalie Des Rosiers
General Counsel
